–O0O–
(THE FOLLOWING OCCURRED OUT OF THE PRESENCE OF THE
JURY:
THE COURT: OKAY. IN THE WESTERFIELD MATTER THE RECORD WILL REFLECT THE APPEARANCE OF COUNSEL AS WELL AS MR. WESTERFIELD. THE COURTROOM IS OPEN TO THE PUBLIC AND MEDIA AND VERY FEW OF WHICH ARE WITH US THIS MORNING.
MR. FELDMAN: GOOD MORNING, YOUR HONOR.
THE COURT: ALL RIGHT.
JUST FOR PURPOSES OF THE RECORD, SO THAT I’VE GOT EVERYTHING COVERED, I’VE RECEIVED, READ, AND CONSIDERED AS IT RELATES TO JURY INSTRUCTIONS THE FOLLOWING ITEMS:
FIRST OF ALL, POINTS AND AUTHORITIES IN SUPPORT OF JURY INSTRUCTIONS FILED BY THE DISTRICT ATTORNEY.
A DOCUMENT ENTITLED "DEFENDANT’S PROPOSED JURY INSTRUCTIONS AND SPECIAL INSTRUCTIONS" FILED ON BEHALF OF THE DEFENDANT, AS WELL AS A MEMORANDUM OF POINTS AND AUTHORITIES ENTITLED "COMPLETE INSTRUCTIONS DEFINING MURDER."
SO I HAVE READ ALL OF THOSE ITEMS PRELIMINARILY TO OUR DISCUSSION REGARDING THE JURY INSTRUCTIONS.
I THINK WHAT I WILL DO AS A MEANS OF CONDUCTING THE DISCUSSION IS SIMPLY USE THE PROFFERED PACKAGE OF THE PEOPLE AS THE BASIS OR THE STARTING POINT, AND WE WILL GO THROUGH IT. RECOGNIZING THAT THE EVIDENCE IS NOT COMPLETE AT THIS POINT IN TIME, WE WILL HAVE TO SEE HOW FAR WE CAN GO.
THE FIRST ONE IN THE PACKAGE PRESENTED BY THE PEOPLE IS THE PRETRIAL ADMONITION WHICH I HAVE ALREADY GIVEN, SO THAT WILL COME OUT.
NEXT TO FOLLOW ALONG WITH THE LIST THAT YOU’VE PREPARED, MR. FELDMAN, SO THAT I CAN CHECK THEM OFF AS WE GO, —
MR. FELDMAN: YES. THANK YOU, YOUR HONOR.
THE COURT: ALL RIGHT.
1.00 WILL BE MODIFIED. I’M GOING TO PRE-INSTRUCT, SO THEY WILL NOT HAVE HEARD THE ARGUMENTS OF THE ATTORNEYS, SO THAT WILL COME OUT IN THE FIRST SENTENCE.
I WILL BE GIVING THEM A WRITTEN SET, MAYBE MULTIPLE SETS, DEPENDING ON THEIR REQUEST. BUT I WILL LEAVE THAT BRACKETED PORTION IN.
WE HAVE A STIPULATION, SO THAT BRACKETED PORTION WILL REMAIN IN.
THERE ARE FINDINGS THE JURY NEEDS TO MAKE, SO THAT BRACKETED PORTION WILL REMAIN IN.
I WILL GIVE THE BALANCE OF THE INSTRUCTION.
1.01 WILL BE GIVEN IN THE PRESENT TENSE, STRIKING THE PAST TENSE.
1.02 WILL BE GIVEN WITH THE FIRST BRACKETED PORTION AS IT RELATES TO STIPULATION. THE SECOND BRACKETED PORTION WILL NOT BE GIVEN.
1.03 WILL BE GIVEN. I DON’T BELIEVE ANY WITNESSES TESTIFIED IN A FOREIGN LANGUAGE. OH, WE HAVE HAD A SIGN INTERPRETER, THAT’S CORRECT. OKAY. VERY GOOD.
MR. FELDMAN: A. S. L.
THE COURT: SO THAT WILL REMAIN IN ITS ENTIRETY.
MR. FELDMAN: YOUR HONOR, IT SAYS YOU MUST ACCEPT THE ENGLISH INTERPRETATION. I DON’T KNOW WHETHER YOU GO TO A. S. L. OR NOT.
THE COURT: WELL, THE ENGLISH INTERPRETATION OF THE SIGN IS THE SAME. SO I WILL JUST LEAVE IT THE WAY IT IS. SO 1.03 WILL BE GIVEN IN ITS ENTIRETY.
MR. DUSEK: I DON’T THINK WE’RE TALKING ABOUT A FOREIGN LANGUAGE HERE.
THE COURT: NO. SOMETHING HAS TO BE MODIFIED THERE AT THE END OF THAT FIRST PARAGRAPH.
MS. JONES: SIGN.
MR. CLARKE: SIGN LANGUAGE.
THE COURT: THE SIGN LANGUAGE. TAKE OUT THE WORD FOREIGN. VERY GOOD POINT. INSERT THE WORD SIGN.
AND WITH THAT, 1.03 WILL BE GIVEN.
MR. BOYCE: YOUR HONOR, THERE MAY BE A WITNESS COMING THAT MIGHT REQUIRE SPANISH-TO-ENGLISH TRANSLATION DEPENDING ON WHO THE PROSECUTION CALLS.
MR. DUSEK: I CAN’T REMEMBER WHO.
MR. BOYCE: HERNANDEZ.
MR. DUSEK: WE WILL MODIFY IT WHEN THAT HAPPENS.
THE COURT: IS THAT GOING TO HAPPEN SO WE NEED TO LET PEGGY KNOW SO THAT SHE CAN NOTIFY THE INTERPRETER STAFF?
MR. DUSEK: THAT SHOULD BE LATE TOMORROW AFTERNOON.
THE COURT: LATE TOMORROW AFTERNOON? WELL, I’LL TAG THAT JUST SO — I MIGHT HAVE TO ADD THE WORD BACK IN. SO THAT WOULD READ SIGN AND/OR FOREIGN LANGUAGE. I’LL JUST TAG THAT FOR OUR FINAL REVIEW OF INSTRUCTIONS.
ALL RIGHT. 1.05 WILL BE GIVEN, BUT IT WILL BE MODIFIED. THE FIRST SENTENCE WILL READ YOU HAVE BEEN GIVEN NOTEBOOKS AND PENS. LEAVE THEM ON YOUR SEAT IN THE JURYROOM WHEN YOU LEAVE EACH DAY AND AT EACH RECESS. THE LAST SENTENCE WILL COME OUT. THAT’S A PRETRIAL ADMONITION.
THE SECOND PARAGRAPH IS A PRETRIAL ADMONITION, SO THAT BRACKETED PORTION WILL COME OUT. AND THE COURT WILL GIVE THE BALANCE OF THE INSTRUCTION.
ALL RIGHT. THE DEFENSE IS SEEKING TO PROFFER TWO DEFINING INSTRUCTIONS. 1.21, THE WORD KNOWINGLY.
MR. FELDMAN: BOTH OF THESE, YOUR HONOR, RELATE TO THE COUNT THREE.
THE COURT: RIGHT. AND 1.24, POSSESSION. PEOPLE HAVE ANY OPPOSITION TO THOSE TWO INSTRUCTIONS?
MR. DUSEK: NO. THAT’S FINE. THEY SHOULD PROBABLY BE INSERTED BACK IN THE DEFINITION OF THE PORNOGRAPHY, THOUGH, RATHER THAN STICKING THEM UP HERE, SEPARATING.
THE COURT: WOULD YOU MIND MAKING A LIST OF INSTRUCTIONS TO PICK UP SO I HAVE CONTINUITY IN THE FORM OF THE INSTRUCTIONS. IN OTHER WORDS, HAVE YOUR PEOPLE PULL THEM. OH, YOU’VE GOT THEM. OH. GREAT. THAT SOLVES THAT PROBLEM REAL QUICK.
ALL RIGHT. WHAT I’LL DO AT THIS POINT, MR. FELDMAN, IS I’LL JUST HOLD THEM OUT, AND WE WILL INSERT THEM WHEN WE GET TO THE SUBSTANTIVE INSTRUCTION.
MR. FELDMAN: THANK YOU.
THE COURT: ALL RIGHT. THEN WE HAVE DIRECT AND CIRCUMSTANTIAL EVIDENCE WHICH IS IN THE FORM OF 2.00, WHICH WILL BE GIVEN.
WE HAVE CIRCUMSTANTIAL EVIDENCE WHICH IS IN THE FORM OF 2.01, WHICH WILL BE GIVEN IN ITS ENTIRETY.
NOW, THE VERY NEXT INSTRUCTION IS 2.02, SPECIFIC INTENT. I DON’T SEE THAT ANYWHERE.
MR. DUSEK: SPECIFIC INTENT TO DO WHAT?
MR. FELDMAN: NO. I’M SORRY. MENTAL STATE.
THE COURT: MENTAL STATE?
MR. FELDMAN: YES. PREMEDITATION AND DELIBERATION.
THE COURT: WE MIGHT AS WELL DISCUSS THAT ISSUE RIGHT NOW. I’VE READ WHAT BOTH OF YOU HAVE TO SAY, AND I WILL HEAR FROM THE PEOPLE AS TO WHY ANY LESSER, INCLUDED OR RELATED OFFENSES SHOULD NOT BE GIVEN.
MR. DUSEK: BECAUSE THERE IS NO LESSER, RELATED OR INCLUDED OFFENSE TO FELONY MURDER. WE ARE PROCEEDING ON A FELONY MURDER THEORY. THE SIMPLEST THEORY THAT WE HAVE. THE ONE THAT IS BEST SUPPORTED BY THE EVIDENCE THAT WHOEVER DID THIS CRIME DID THE KIDNAPPING, AND THAT THE PERSON DIED FROM THAT KIDNAPPING, IT’S FIRST-DEGREE MURDER. WE DON’T NEED TO CONCERN OURSELVES WITH WILFUL, DELIBERATE, PREMEDITATED, SPECIFIC INTENT TO KILL. IT IS SIMPLY DID YOU DO A KIDNAPPING. DID THAT CHILD DIE DURING THAT KIDNAPPING. THAT’S THE THEORY WE’VE BEEN GOING ON. THAT’S THE THEORY WE PRESENTED HERE. THERE IS NO LESSER, INCLUDED OFFENSE TO FELONY MURDER.
THE COURT: ALL RIGHT. MR. FELDMAN. OR MR. BOYCE.
MR. BOYCE: YOUR HONOR, I DON’T THINK AS WE SAID IN OUR PLEADING THAT THE PEOPLE ARE GOING TO BE SAYING THAT THERE’S NOT SUFFICIENT EVIDENCE FOR IT TO PROVE PREMEDITATION AND DELIBERATION OR THERE’S NO — ANY SUBSTANTIAL EVIDENCE OF PREMEDITATION AND DELIBERATION. AND JUST AS IN BARTON, THE PROSECUTION MAY NOT INVOKE TACTICAL CONSIDERATIONS TO DEPRIVE THE JURY OF THE OPPORTUNITY TO CONSIDER WHETHER THE DEFENDANT IS GUILTY OF THE ACTUAL CRIME CHARGED IN THIS CASE AS OPPOSED TO A LESSER, INCLUDED OFFENSE.
THIS IS ANALOGOUS TO THE RATIONALE IN BARTON BECAUSE ALTHOUGH IT IS NOT A TRUE LESSER, INCLUDED OFFENSE, IT’S CERTAINLY A LESSER THEORY OR A LESSER — A LESSER — I THINK IT’S ANALOGOUS TO A LESSER, INCLUDED OFFENSE BECAUSE WHAT THE PROSECUTION IS ATTEMPTING TO DO IS BOOTSTRAP THEIR WAY INTO THE SPECIAL CIRCUMSTANCE KIDNAPPING DURING THE COURSE OF A MURDER BY THE WAY THEY’RE CHARACTERIZING THE THEORY OF MURDER IN THIS CASE. SO BY THAT ANALOGY I BELIEVE IT IS A LESSER, INCLUDED OFFENSE.
WHAT THEY’RE — I THINK WHAT THEY’RE ATTEMPTING TO DO AN END RUN AROUND IS A JUROR THAT HAS — BELIEVES THAT THE PROSECUTION HAS PROVEN THAT MR. WESTERFIELD IS THE ACTUAL KILLER, BUT A JUROR THAT HAS SOME DOUBTS ABOUT HOW THE MURDER HAPPENED OR HOW THE LITTLE GIRL GOT WHEREVER SHE GOT. AND THAT JUROR, WHEN PRESENTED WITH AN ALL-OR-NOTHING CHOICE BETWEEN EITHER LETTING A DEFENDANT WALK FREE OR CONVICT HIM OF THE THEORY PRESENTED BY THE PROSECUTION IS GOING TO, THE PROSECUTION BELIEVES, CONVICT THE DEFENDANT RATHER THAN ALLOW HIM TO GO FREE. AND, THEREFORE, BOOTSTRAP THEIR WAY RIGHT INTO THE KIDNAPPING DURING THE COURSE OF A MURDER SPECIAL CIRCUMSTANCE.
SO THE SAME RATIONALE THAT’S SET FORTH IN BARTON APPLIES TO THIS CASE. MR. WESTERFIELD’S RIGHT TO DUE PROCESS, A FAIR TRIAL, AND A RELIABLE GUILT DETERMINATION REQUIRES THAT THE JURY SHOULD BE INSTRUCTED ON THE CRIME WITH WHICH HE IS CHARGED, WHICH IS FIRST-DEGREE MURDER.
THE COURT: ALL RIGHT.
DO YOU CARE TO RESPOND, MR. DUSEK, OR SUBMIT?
MR. DUSEK: I’LL SUBMIT IT, YOUR HONOR.
THE COURT: ALL RIGHT.
BARTON IS CLEARLY DISTINGUISHABLE. BARTON WAS NOT A WHO-DONE-IT; IT WAS A WHAT-IS-IT. AND IT WAS — THE ENTIRE GAMUT OF HOMICIDE INSTRUCTIONS WERE GIVEN BY THIS VERY COURT IN THAT MATTER, EVEN THOUGH THE DEFENSE COUNSEL IN THAT MATTER WANTED ONLY THE INSTRUCTION FOR FIRST-DEGREE MURDER. SO THE BARTON ANALYSIS IS TECHNICALLY LIKE COMPARING APPLES AND ORANGES.
NUMBER TWO, WHAT IS BEING PROPOSED BY THE DEFENSE IS NOT A LESSER, INCLUDED OFFENSE, IT’S A DIFFERENT THEORY OF HOMICIDE. AND IN THIS CASE THERE IS ONLY ONE THEORY THAT THERE IS ANY EVIDENCE ON, AND THAT IS THAT THIS HOMICIDE OCCURRED DURING THE COURSE AND SCOPE OF THE KIDNAPPING. THE JURY EITHER BELIEVES THAT OR THEY DON’T BELIEVE IT. BUT THERE IS NO OTHER THEORY THAT THE PROSECUTION HAS PROFFERED.
ON THE ARGUMENT THAT THIS JURY HAS BEEN PRESENTED WITH EVIDENCE OF PREMEDITATION AND DELIBERATION, I’M NOT AWARE OF WHAT THIS OVERWHELMING EVIDENCE IS SUPPOSED TO BE.
MR. FELDMAN: IT’S COMING IN REBUTTAL. THEY HAVEN’T FINISHED, JUDGE. I’M SORRY.
THE COURT: WELL, I WILL BE MORE THAN HAPPY TO RECONSIDER IT, BUT I’M TELLING YOU RIGHT NOW THAT MY TENTATIVE RULING IS THAT NONE OF THESE INSTRUCTIONS OTHER THAN FELONY MURDER ARE APPLICABLE.
MR. BOYCE: WELL, YOUR HONOR, THEY PRESENTED EVIDENCE THROUGH DR. BLACKBOURNE THAT THE — HE COULD NOT RULE OUT THE CAUSE OF DEATH BEING SUFFOCATION. THEY ALSO ATTEMPTED TO PRESENT EVIDENCE THAT THE TEETH WERE MISSING FROM THE VICTIM IN THIS CASE. THAT’S CERTAINLY EVIDENCE OF PREMEDITATION AND DELIBERATION, THE MANNER IN WHICH THE HOMICIDE OCCURRED.
THE COURT: WELL, MR. BOYCE, THE PROBLEM YOU’VE GOT THERE IS THE ONLY WAY THE GIRL GETS INTO POSSESSION OF MR. WESTERFIELD IS BY KIDNAPPING. THAT’S THE ONLY WAY. THIS GIRL DIDN’T VOLUNTARILY GO WITH HIM. THERE’S NO EVIDENCE OF THAT. SHE WASN’T ALLOWED TO GO WITH HIM. SO, YOU KNOW, —
MR. BOYCE: THERE IS NO EVIDENCE OF HOW SHE GOT THERE. I MEAN FOR ALL THEY KNOW THAT SOMEBODY COULD HAVE ASKED HER DO YOU WANT TO GO CAMPING FOR THE WEEKEND, AND SHE ENDED UP IN THE MOTOR HOME. WE DON’T KNOW. THERE’S BEEN NO EVIDENCE PRESENTED.
NOW, I’M NOT SAYING THAT THEIR THEORY IS UNREASONABLE. I’M NOT SAYING THAT IT’S — BUT I’M SAYING THERE ARE OTHER THEORIES OUT THERE. I’M SAYING THIS — THERE IS NO EVIDENCE PRESENTED AS TO HOW SHE GOT WHEREVER SHE WAS MURDERED.
THE COURT: ALL RIGHT.
MR. BOYCE: AND SHE COULD ALSO HAVE BEEN KILLED IN THE ROOM, TOO, IN HER BEDROOM. THERE’S BLOOD IN THE BEDROOM. I MEAN THOSE ARE — I’M NOT SAYING WE ARE RELYING ON THOSE THEORIES, BUT THOSE ARE CERTAINLY THEORIES THAT ARE OUT THERE. AND THERE’S BEEN NO EVIDENCE AS TO WHERE, WHEN, OR HOW SHE WAS MURDERED.
THE COURT: THAT MAY BE THE CASE, BUT ON THE KEY ISSUE OF WHETHER OR NOT SHE WENT WILLINGLY, THERE IS EVIDENCE. THE PARENTS HAVE INDICATED NO ONE HAD PERMISSION TO TAKE THEIR CHILD OUT OF THAT HOUSE. THAT IS A KIDNAPPING. THAT IS A PRECURSOR TO THE CHILD EVEN, ASSUMING THAT THE EVIDENCE IS BELIEVED, BEING IN PROXIMITY TO YOUR CLIENT. SO — AND THE PROSECUTION IS NOT REQUIRED — WE SEEM TO BE ARGUING THIS, AND I’M SURE YOU WILL ARGUE THAT THERE IS NO PROOF OF HOW THIS ALL OCCURRED. AND THAT MAY VERY WELL BE THE CASE. BUT THERE IS PROOF THAT SHE WAS HOME; THERE IS PROOF THAT NO ONE HAD A RIGHT TO BE IN THAT HOUSE OTHER THAN THE FAMILY. AND THERE IS PROOF THAT THE PARENTS DIDN’T GIVE ANYONE PERMISSION TO TAKE THEIR CHILD. THAT’S KIDNAPPING.
NOW, YOU’RE RIGHT. I HAVEN’T HEARD THE END OF THE EVIDENCE. SO WHAT I’LL DO IS I’LL MAKE IT A TENTATIVE RULING INSTEAD OF A FORMAL RULING. AND I’LL LISTEN TO WHAT YOU HAVE TO SAY AFTER I HAVE HEARD ALL OF THE EVIDENCE. BUT AT THIS POINT IN TIME I SEE NO REASON TO GIVE A FIRST-DEGREE PREMEDITATED, DELIBERATED MURDER.
MR. BOYCE: YOUR HONOR, I’M NOT SAYING WE’RE RELYING ON IT, YOU KNOW, BUT THERE WAS TESTIMONY THAT SHE SLEEPWALKED, TOO. AND, AS I SAID BEFORE, THERE’S NO EVIDENCE THAT SHE DIDN’T AGREE TO GO WHEREVER SHE ENDED UP OR WHEREVER SHE WAS KILLED, TOO. AND IT’S THEIR BURDEN TO PROVE THE FORCIBLE TAKING FOR KIDNAPPING. THAT EVIDENCE IS SUBJECT TO MANY THEORIES OF INTERPRETATION; AND, THEREFORE, THAT’S WHY THEY’RE FORCING THIS INTO A FELONY MURDER THEORY RATHER THAN RELYING UPON PREMEDITATION AND DELIBERATION ALSO. OR BOTH.
THE COURT: WELL, ALL RIGHT. YOU’VE MADE YOUR RECORD; I’VE MADE MINE. WE’LL REVISIT IT AT THE END. BUT AT THIS POINT IN TIME I DON’T ANTICIPATE GIVING THOSE INSTRUCTIONS.
OKAY. I AM ASSUMING YOU’VE PROFFERED 2.03.
MR. BOYCE: YOUR HONOR, THEN YOU’RE NOT GIVING 2.02?
THE COURT: NO. AT THIS POINT IN TIME I AM MAKING A NOTE I AM NOT. I’LL REVISIT IT AS I HAVE INDICATED, BUT AT THIS POINT IN TIME I AM NOT.
JUST FOR PURPOSES OF ARGUMENT SAKE, MR. DUSEK, DO YOU WANT TO OUTLINE YOUR THEORIES AS TO 2.03, 2.04, AND 2.06.
MR. DUSEK: 2.03 RELATES TO THE STORY THAT HE GAVE THE POLICE OFFICERS JOHNNY KEENE AND PAUL REDDEN REGARDING HIS EXCELLENT ADVENTURE THROUGH THE DESERT. THE LIES THAT HE TOLD THEM. THE OMISSIONS THAT HE GAVE. THE MISLEADING STATEMENTS THAT HE GAVE AS TO ABOUT WHERE HE WAS AND WHEN HE WAS THERE AND WHAT HE WAS DOING ALONG THOSE — ALONG THAT TRIP. THAT’S 2.03.
2.04 IS WITHDRAWN.
THE COURT: I THINK THAT’S NOT APPLICABLE, SO THAT WILL BE WITHDRAWN.
MR. DUSEK: 2.06 WOULD BE THE HIDING, DISPOSAL, GETTING RID OF, TRYING TO GET RID OF, THE BLOOD EVIDENCE ON THE JACKET, TAKING IT TO THE DRYCLEANER’S, TRYING TO CLEAN THAT UP. TAKING THE COMFORTER TO THE DRYCLEANER’S WHEN IT STILL HAD DOG HAIRS ON IT. THE MISSING COWBOY BOOTS THAT HE APPARENTLY WAS WEARING THAT NIGHT. THEY HAVE BEEN LOST, DESTROYED, CONCEALED. THE VICTIM’S PAJAMAS HAVE NEVER BEEN FOUND. THEY HAVE BEEN LOST, DESTROYED, CONCEALED. AND ALSO THE MATERIAL THAT CONTAINS THE BLUE AND ORANGE FIBERS, THEY HAVE NEVER BEEN FOUND OR LOCATED. I BELIEVE THEY’VE BEEN DESTROYED OR CONCEALED.
THE COURT: ALL RIGHT.
MR. BOYCE.
MR. BOYCE: YOUR HONOR, AS FAR AS TWO-O-THREE IS CONCERNED, I BELIEVE THAT HIS STATEMENTS WERE CORROBORATED, THAT HIS — WHERE HE WENT THAT WEEKEND WAS CORROBORATED BY MANY WITNESSES. IF THE PROSECUTION WANTS TO ARGUE THAT CERTAIN DETAILS OF IT WERE FALSE, I THINK THAT’S A MATTER OF INTERPRETATION. I DON’T BELIEVE THEY ARE — UNDER THIS STATE OF THE EVIDENCE ARE ENTITLED TO AN INSTRUCTION 2.03 CONCERNING THAT.
AS FAR AS 2.06 IS CONCERNED, I WOULD ARGUE THE SAME, THAT IT’S A MATTER OF INTERPRETATION. THEY ARE NOT ENTITLED TO AN INSTRUCTION ON IT. AND SUBMIT IT.
THE COURT: ALL RIGHT.
I DON’T KNOW WHERE PEGGY HAS GONE ALL OF A SUDDEN. BUT 2.03 WILL BE MARKED AS PROFFERED BY THE PEOPLE. IT WILL NOT BE GIVEN BY THE COURT. REALLY THAT INSTRUCTION IN THIS CIRCUMSTANCE IS COVERED BY CREDIBILITY OF WITNESSES INSTRUCTIONS, AND IT MAKES FAIR GAME HIS STATEMENT AND THE ARGUMENT OF THE EVIDENCE. SO 2.03 WILL NOT BE GIVEN AS PROFFERED BY THE PEOPLE, BUT IT WILL BE MADE PART OF THE FILE.
AS TO 2.06, IT’S VERY CLEAR THAT THE INTERPRETATION OF THAT EVIDENCE, IF BELIEVED, IS THAT THERE WAS AN EFFORT TO SUPPRESS EVIDENCE IN THE FORM OF BLOOD AND FIBER EVIDENCE BY TURNING IT ALL OVER TO THE CLEANER’S. ALL OF THAT TESTIMONY RELATES TO A VERY UNIQUE AND DIFFERENT MR. WESTERFIELD THAT THE EMPLOYEES OF THE CLEANING SERVICE ENCOUNTERED.
SO I THINK THE WAY I’LL HAVE TO DO THAT IS ON 2.06, AND I’LL NOTE THAT 2.06 IS GIVEN OVER THE OBJECTION OF THE DEFENSE, THE FIRST TWO BRACKETED PORTIONS WILL COME OUT IN THEIR ENTIRETY. AND I THINK THE ONLY ONE THAT APPEARS TO BE APPLICABLE WOULD BE DESTROYING. I DON’T KNOW HOW YOU CAN CONCEAL IT AT A DRYCLEANER’S WHEN THE EFFORT IS BEING MADE TO BASICALLY REMOVE THE ITEM. SO IT WOULD APPEAR TO ME THE ONLY ONE APPLICABLE IS DESTROYING EVIDENCE.
I’LL HEAR FROM THE PEOPLE, THOUGH, IF YOU HAVE ANOTHER THEORY.
MR. DUSEK: I THINK IT SHOULD BE DESTROYED OR CONCEALED. CERTAINLY TAKING IT, THE DRYCLEANER’S WOULD DESTROY THE EVIDENCE, CERTAINLY ON HIS MENTAL STATE, OR CONCEAL IT BECAUSE WE COULDN’T FIND IT. ALONG WITH THE COWBOY BOOTS AND THE PAJAMAS.
THE COURT: I FORGOT THOSE TWO OTHER ITEMS. YES. OKAY. ALL RIGHT.
SO WHAT I’LL DO IS BY DESTROYING, TAKE THAT BY OUT OR CONCEALING. AND THE LAST BLANK BRACKETED PORTION WILL BE DELETED.
MR. FELDMAN: YOUR HONOR, THEN THERE’S NO FILL IN THE BLANK?
THE COURT: NO FILL IN THE BLANK.
OKAY. THEN WE HAVE 2.11, PRODUCTION OF ALL EVIDENCE.
MR. FELDMAN: YOU SKIPPED TWO-O-NINE. THEY DIDN’T REQUEST IT. IT’S ON MY LIST, YOUR HONOR, THE DEFENSE’ LIST. I’M SORRY. YOU HAVE ADMITTED EVIDENCE FOR A LIMITED PURPOSE.
THE COURT: AND I HAVE INSTRUCTED THE JURY ACCORDINGLY. THAT’S TRUE. THAT WOULD APPEAR TO BE APPROPRIATE. ALL RIGHT. CONCEDED BY THE PEOPLE.
SO 2.09 IS NEXT IN CHRONOLOGICAL ORDER. THAT WILL BE GIVEN.
ALL RIGHT. THEN NEXT IS 2.11. THAT’S GOING TO BE GIVEN IN ITS ENTIRETY.
MR. FELDMAN: YOUR HONOR, WITH REGARD TO TWO-ELEVEN, THE DEFENSE OBJECTS TO GIVING TWO-ELEVEN ON THE GROUNDS IT VIOLATES MR. WESTERFIELD’S FIFTH, SIXTH, AND EIGHTH AND FOURTEENTH AMENDMENT RIGHTS TO A FAIR TRIAL IN THAT THIS INSTRUCTION SPECIFICALLY TELLS THE JURY THE PROSECUTION DOESN’T BASICALLY HAVE TO CALL PEOPLE THAT THE JURY MIGHT THINK OR THAT THE LAW WOULD REQUIRE, AND I JUST FOR THE RECORD WISH TO MAKE THAT OBJECTION.
THE COURT: PEOPLE SUBMIT?
MR. DUSEK: YES.
THE COURT: ALL RIGHT.
IT’S A PROPER STATEMENT OF THE LAW, AND IT’S UP TO THE JURY HOW MUCH SIGNIFICANCE IT HAS. ANYWAY, 2.11 WILL BE GIVEN OVER THE OBJECTION OF THE DEFENSE.
2.13. WE’VE HAD PRIOR CONSISTENT AND INCONSISTENT TESTIMONY BY BOTH HIMS AND HERS, SO 2.13 WILL BE GIVEN IN ITS ENTIRETY.
ALL RIGHT. NEXT UP IS A RELATIVELY NEW INSTRUCTION ON DOG TRACKING EVIDENCE. 2.16.
MR. FELDMAN: COULD WE DEFER THOSE UNTIL WE GET TO THE SPECIALS? WE SUBMITTED SPECIALS I THINK WITH —
THE COURT: NOT ON DOGS.
MR. FELDMAN: WITH REGARD TO THE CALJIC TWO-SIXTEEN, COULD WE DEFER THAT?
THE COURT: ALL RIGHT.
MR. FELDMAN: BECAUSE I THINK THAT’S GOING TO TAKE SOME DISCUSSION.
THE COURT: ULTIMATELY WE ARE GOING TO HAVE THE FINAL DISCUSSION OF INSTRUCTIONS AFTER WE’VE HEARD ALL THE EVIDENCE, SO I DON’T MIND DOING THAT.
MR. FELDMAN: THANK YOU.
THE COURT: ALL RIGHT. 2.16 WILL BE DEFERRED.
ALL RIGHT. 2.20 WILL BE GIVEN. I BELIEVE WE HAVE HAD A WITNESS TESTIFY ON AFFIRMATION. SO THAT BRACKETED PORTION WILL REMAIN IN.
MR. CLARKE: IS THAT IN FRONT OF THE JURY, YOUR HONOR? IS THAT DR. RYDER?
THE COURT: I’M REALLY NOT CERTAIN, BUT IT’S REALLY A NO HARM, NO FOUL KIND OF THING. SO I WILL JUST PUT IT IN OUT OF AN ABUNDANCE OF CAUTION.
ARE WE GOING TO HAVE ANY PURE CHARACTER EVIDENCE?
MR. DUSEK: NO.
THE COURT: SHOULD I LEAVE THIS ONE TO REVISIT AT THE END OF THE CASE?
MR. FELDMAN: YES.
THE COURT: ALL RIGHT.
MR. FELDMAN: PLEASE.
THE COURT: WE DEFINITELY HAVE ADMITTED UNTRUTHFULNESSES. I’M ANTICIPATING WE’RE GOING TO HAVE PRIOR CONVICTION OF A FELONY.
MR. DUSEK: YES.
THE COURT: AND, WELL, I’M ASSUMING THERE’S NO GRANT OF IMMUNITY FLOATING AROUND OUT THERE, SO THAT ONE I THINK I CAN SUCCESSFULLY STRIKE AT THIS TIME. BUT WE WILL REVISIT THIS INSTRUCTION AT OUR FINAL DISCUSSION OF INSTRUCTIONS.
2.21.1 WILL BE GIVEN.
2.21.2 WILL BE GIVEN.
2.22 WILL BE GIVEN. I GENERALLY DON’T PUT IN THE BRACKETED PORTIONS BECAUSE I DON’T WANT THE JURY JUST COUNTING NUMBERS. SO, AT ANY RATE, AS MODIFIED, 2.22 WILL BE GIVEN.
NOW, YOU’VE PUT IN 2.26.
MR. FELDMAN: I WAS THINKING OF RIVER, YOUR HONOR. SHE TRIED. I DON’T KNOW HOWEVER YOU WANT TO DEAL WITH IT.
MR. BOYCE: SHE —
MR. FELDMAN: TRIED TO EXERCISE —
MR. BOYCE: — RAISED THE SHIELD LAW. SHE ASKED FOR GUYLYN CUMMINS.
THE COURT: RIGHT. AND IT WAS PROMPTLY DENIED.
MR. BOYCE: YES.
THE COURT: AND I’M NOT — I’LL LOOK AT THIS AGAIN, BUT MY INITIAL READING OF IT WAS IT WASN’T APPLICABLE. BUT I’LL LOOK AT IT AGAIN.
IT’S NOT APPLICABLE. I WILL NOTE THAT THE DEFENSE HAS REQUESTED 2.26. THAT WILL NOT BE GIVEN.
SEEMS TO ME I’M MISSING THE INSTRUCTION ON HOW TO TREAT A FELON. THERE’S A SPECIAL —
MR. FELDMAN: YOUR HONOR, JUST ON THE SHIELD ISSUE, —
THE COURT: SURE.
MR. FELDMAN: — WE JUST RECALL THAT MARK MATTHEWS RAISED THE SHIELD, AND YOU SUSTAINED AN OBJECTION BASED ON HIS ASSERTION OF THE SHIELD. ‘CAUSE I WAS ASKING HIM QUESTIONS, AND MY RECOLLECTION IS SOMEWHERE IN THERE THERE WAS AN OBJECTION OR HE ASSERTED THE SHIELD, AND THE COURT SUSTAINED AN OBJECTION ACCORDING TO HIS REQUEST.
THE COURT: HE WAS THE REPORTER THAT WAS CALLED FOR THE LIMITED PURPOSE OF LAYING THE FOUNDATION FOR THE VIDEOTAPE, CORRECT?
MR. FELDMAN: HE TESTIFIED ABOUT THE VIDEOTAPE, YES.
THE COURT: ALL RIGHT. TRYING TO THINK.
MR. FELDMAN: I JUST WANTED TO RAISE THAT.
THE COURT: I THINK IN THE CROSS-EXAMINATION YOU’RE RIGHT, YOU WENT A LITTLE BIT FURTHER. AND IT WASN’T THE PEOPLE THAT OBJECTED, BUT MISS CUMMINS WAS HERE. IS THAT YOUR RECOLLECTION AS WELL?
MR. DUSEK: IT’S TOO VAGUE AT THIS POINT, YOUR HONOR. I THINK BOTH SIDES SHOULD PROBABLY GO BACK AND CHECK THE TRANSCRIPT AND MAKE SURE IT WAS SHIELD OBJECTIONS THAT WERE MADE.
THE COURT: ALL RIGHT. I WILL LEAVE 2.26 FOR DISCUSSION.
MR. FELDMAN: THANK YOU.
THE COURT: 2.23 IS THE ONE I HAD IN MIND, MR. DUSEK. BELIEVABILITY OF A WITNESS, CONVICTION OF A FELONY. I DON’T KNOW IF YOU HAPPEN TO HAVE THAT ONE IN YOUR PACKAGE OR NOT.
OKAY. THANK YOU.
SO 2.23, BELIEVABILITY OF A WITNESS, CONVICTION OF A FELONY, WILL GO RIGHT AFTER 2.22.
ALL RIGHT. THEN WE HAVE 2.27, WHICH WILL BE GIVEN. THERE IS NO CORROBORATION REQUIRED, SO IT WOULD APPEAR THAT THE BRACKETED PORTION SHOULD COME OUT OF THAT. UNLESS I HEAR ANY ARGUMENT TO THE CONTRARY.
MR. DUSEK: THAT’S FINE.
THE COURT: ALL RIGHT. THE BRACKETED PORTIONS ARE OUT ON THAT INSTRUCTION.
ALL RIGHT. THEN WE HAVE —
MR. FELDMAN: YOUR HONOR, I’M SORRY. JUST WITH REGARD TO THE ISSUE OF STRIKING THE WORD UNCORROBORATED, THERE’S A GREAT DEAL OF UNCORROBORATED TESTIMONY BY INDIVIDUAL WITNESSES.
THE COURT: THAT’S TRUE. SO?
MR. FELDMAN: SO I’M THINKING MAYBE IT’S APPROPRIATE TO LEAVE THE WORD IN. THAT’S WHAT I’M THINKING.
THE COURT: NO. WELL, THE REASON THE COURT IS STRIKING IT IS THAT APART FROM CONSPIRACIES AND COHORTS IN CRIME AND THOSE KINDS OF THINGS, THIS IS NOT APPLICABLE TO A CASE SUCH AS THIS. THAT GOES AGAIN TO BELIEVABILITY OF WITNESSES WHICH YOU CAN ARGUE THROUGH THE OTHER INSTRUCTION.
BUT I WILL, FOR PURPOSES OF THE RECORD, I WILL NOTE THAT THE DEFENSE HAS OBJECTED TO THE STRIKING OF THE INFERENCE, THE AREAS COVERING UNCORROBORATED, JUST TO MAKE SURE THE RECORD IS CLEAR.
MR. FELDMAN: THANK YOU.
THE COURT: 2.51 IS BEING SUGGESTED BY THE DEFENSE.
PEOPLE?
MR. FELDMAN: YOUR HONOR, WE WILL BE SUBMITTING SPECIALS ON THAT.
THE COURT: ALL RIGHT.
WELL, LET ME JUST HEAR IF THE PEOPLE HAVE ANY OPPOSITION RIGHT NOW TO THE STANDARD INSTRUCTION ON MOTIVE.
MR. DUSEK: NO. THAT’S FINE, YOUR HONOR.
THE COURT: ALL RIGHT.
DO YOU HAPPEN TO HAVE THAT IN YOUR PACKAGE?
MR. FELDMAN: HE JUST HAPPENS TO, YOUR HONOR. YOU COULD TELL.
THE COURT: ALL RIGHT. I’LL PUT IN 2.51 AND THEN ANY SPECIAL INSTRUCTIONS AS IT RELATES TO THAT WE’LL DISCUSS THEM IN OUR FINAL CHAT.
ALL RIGHT. THE PEOPLE HAVE PROFFERED 2.71 AND 2.72. SINCE I KNOW THERE’S GOING TO BE AN OBJECTION, I WILL ALLOW YOU TO MAKE YOUR RECORD, MR. DUSEK.
MR. FELDMAN: DID YOU INTENTIONALLY SKIP TWO-SIXTY?
THE COURT: OH. WE HAVEN’T — OH, WAIT A MINUTE. IN NUMERICAL SEQUENCING, THAT IS CORRECT. SO I’M ASSUMING THAT AT THIS POINT — DO YOU HAVE THOSE INSTRUCTIONS OUT OF AN ABUNDANCE OF CAUTION?
MR. DUSEK: YEAH.
THE COURT: OKAY. I’LL QUIT ASKING UNTIL YOU DON’T HAVE ONE.
ALL RIGHT. AT THIS POINT IN TIME, BASED ON EVERYTHING I KNOW, 2.60 AND 2.61 APPEAR TO BE APPROPRIATE.
THANK YOU.
AGAIN, OBVIOUSLY, UNTIL THERE IS A CONCLUSION OF ALL THE EVIDENCE, WE DON’T KNOW.
OKAY. 2.71 AND 2.72.
MR. DUSEK: I THINK THE STATEMENTS MADE BY THE DEFENDANT TO THE POLICE OFFICERS COMING OUT OF HIS MOUTH ARE ADMISSIONS, AND WE NEED THE CORROBORATION OF 2. — I’M SORRY — THE CORPUS DELICTI INSTRUCTION OF 2.72 TO MAKE IT LEGALLY ADMISSIBLE.
THE COURT: ALL RIGHT.
MR. BOYCE.
MR. BOYCE: SUBMITTED, YOUR HONOR.
THE COURT: IT IS APPROPRIATE. SO 2.71 WILL BE GIVEN WITH THE BRACKETED PORTION AT THE BASE.
2.72 WILL BE MODIFIED TO STRIKE CONFESSION WHEREVER IT APPEARS, INCLUDING IN THE HEADING AND IN THE BODY OF THE INSTRUCTION.
AND AT THIS POINT IN TIME I’M NOT GOING TO STRIKE IT;
BUT DEPENDING ON WHETHER OR NOT THERE IS A CHANGE IN THE COURT’S POSITION, I’LL ALSO STRIKE NOR DEGREE OF CRIME. BUT I’LL WAIT ‘TIL THE CONCLUSION OF THE CASE TO MAKE THAT ULTIMATE CALL.
ALL RIGHT. THEN WE HAVE 2.80. WE HAVE MULTIPLE WITNESSES. SO IT WILL BE PLURAL. THEN WE’VE HAD HYPOTHETICAL QUESTIONS, SO 2.82 WILL COME INTO PLAY.
MR. FELDMAN: YOUR HONOR, AGAIN YOU JUMPED OVER 2.81. I DON’T KNOW WHETHER YOU INTEND TO GO SEQUENTIAL.
MR. DUSEK: I PUT THESE IN AN ORDER THAT I THOUGHT MADE SENSE.
THE COURT: YES. THE LAY USUALLY COMES AFTER THE —
MR. FELDMAN: I’M SORRY. I WAS RUNNING CHRONOLOGICALLY.
THE COURT: YES. SO WE’RE GOING TO DO ALL THE — IT KEEPS THEM ALL IN SEQUENCE FOR EXPERTS. 2.80, 2.82, AND 2.83 ALL RELATE TO EXPERTS. AND THEN 2.81 REFERS TO LAY WITNESSES. AND SO THOSE WILL ALL BE GIVEN.
MR. FELDMAN: SO IN THAT SEQUENCE, THOUGH, YOUR HONOR?
THE COURT: IN THAT SEQUENCE.
2.81 WILL BE GIVEN AFTER 2.83.
MR. FELDMAN: THANK YOU.
THE COURT: 2.90 WILL BE GIVEN.
MR. DUSEK: 2.90?
THE COURT: YES. IS NEXT.
NOW, THE DEFENSE IS REQUESTING 2.92 AS IT RELATES TO EYEWITNESS TESTIMONY.
MR. BOYCE: WE MAY NEED 2.91, TOO, DEPENDING ON WHAT THEIR REBUTTAL IS.
THE COURT: WELL, I’M NOT SURE OF THE APPLICATION OF THAT. BUT DO YOU WANT TO ARGUE THAT NOW OR WAIT UNTIL THE END OF THE EVIDENCE?
MR. DUSEK: I THINK IT WOULD BE THE SAME REGARDLESS. THE PRIMARY THRUST OF THIS CASE IS CIRCUMSTANTIAL EVIDENCE CASE BASED UPON THE PHYSICAL EVIDENCE. IT IS CERTAINLY NOT AN EYEWITNESS CASE WHERE SOMEONE WATCHED THE MURDER TAKE PLACE. SO I WOULD THINK THAT THE 2.91 AND 2.92 ARE NOT APPLICABLE TO THIS SITUATION.
THE COURT: MR. BOYCE.
MR. BOYCE: WELL, I THINK CLEARLY FROM WHAT THE PROSECUTION IS OFFERING IN REBUTTAL THEY CERTAINLY GO TO THIS ONE WITNESS THAT WE’VE TALKED ABOUT DOWN AT THE STRAND. SO WE WOULD REQUEST 2.91 AND 2.92.
THE COURT: ALL RIGHT.
I WILL NOTE THAT FOR THE RECORD. HOWEVER, THESE INSTRUCTIONS DEAL WITH EYEWITNESS, PERCIPIENT WITNESSES TO CRIMINAL ACTS, NOT SIMPLY WHETHER A PERSON WAS AT POINT A AT A CERTAIN TIME OR IS RECOGNIZED AS BEING AT POINT B AT A CERTAIN TIME. THAT IS A CREDIBILITY ISSUE THAT CAN BE ARGUED SUCCESSFULLY —
MR. FELDMAN: YOUR HONOR, COULD YOU —
THE COURT: — THROUGH THOSE INSTRUCTIONS.
MR. FELDMAN: EXCUSE ME. I’M SORRY. WOULD YOU PLEASE CONSIDER DEFERRING ANY FINAL RULING UNTIL YOU HAVE HEARD ALL THE EVIDENCE ON THIS?
THE COURT: I HAVE NO PROBLEM DOING THIS. LIKE I SAID ALL ALONG, WE ARE GOING TO HAVE TO REVISIT ALL THESE AFTER I HAVE HEARD ALL THE EVIDENCE ANYWAY, SO I DON’T MIND ADDING THAT TO THE LIST.
MR. FELDMAN: THANK YOU.
THE COURT: OKAY.
NEXT UP WE HAVE 3.30, WHICH DEALS WITH COUNTS TWO AND THREE.
MR. DUSEK: BEFORE WE MOVE ON, YOUR HONOR, COULD WE HAVE A MOMENT?
THE COURT: SURE.
[DISCUSSION OFF THE RECORD BETWEEN MR. DUSEK
AND MR. CLARKE.]
MR. DUSEK: FINE, YOUR HONOR.
THE COURT: ALL RIGHT.
ALL RIGHT. SO, ANYWAY, 3.30 DEALS WITH COUNTS TWO AND THREE.
3.31 DEALS WITH —
MR. FELDMAN: THE DEFERRED ISSUE. ACTUALLY THREE POINT ONE AND POINT FIVE —
[DISCUSSION OFF THE RECORD BETWEEN MR. FELDMAN
AND MR. BOYCE.]
MR. FELDMAN: WE’LL WITHDRAW 3.31, YOUR HONOR.
THE COURT: ALL RIGHT. IT’S IN THE PEOPLE’S PROFFERED PACKAGE, BUT I’M NOT SURE IT’S NECESSARY.
MR. DUSEK: LOOKING FORWARD TO 8.21, THE DEFINITION OF FIRST-DEGREE FELONY MURDER, IT APPEARS THAT WE HAVE TO —
THE COURT: PROVE THAT HE HAD THE SPECIFIC INTENT TO COMMIT THE CRIME OF KIDNAPPING.
MR. DUSEK: YES.
THE COURT: THEN YOU ARE GOING TO NEED TO BRING IN 2.02.
MR. FELDMAN: AND WE WITHDRAW OUR WITHDRAWAL OF 3.31.
THE COURT: ALL RIGHT. OKAY. SO 3.31 NEEDS TO BE GIVEN. AND I ALWAYS GIVE 2.02 RIGHT AT THIS JUNCTURE SO THAT THE JURY UNDERSTANDS WHAT SPECIFIC INTENT RELATES TO. SO WE WILL GIVE 3.31 FOLLOWED BY 2.02. MENTAL STATE, HOWEVER, WILL BE REMOVED FROM THE HEADING AND THE BODY OF THE INSTRUCTION.
MR. FELDMAN: YOUR HONOR, I JUST — I’M SORRY. JUST FOR CLARIFICATION, I ASSUMED THAT THE COURT WOULD JUST REDACT OUT ANYWAY THE CAPTIONS OF THE INSTRUCTIONS WHEN YOU ARE SUBMITTING THEM TO THE JURY OR WHEN YOU PROVIDE THEM TO THE JURY.
THE COURT: I GENERALLY LEAVE THEM IN UNLESS THERE’S SOMETHING IN THE HEADING THAT IS NOT IN THE BODY OF THE INSTRUCTION. SO I SUPPOSE I OUGHT TO MARK THIS ONE, HOWEVER, AS ANOTHER ONE THAT I HAVE TO MAINTAIN AWAITING THE END OF THE EVIDENCE BECAUSE I’VE AGREED TO BASICALLY DO THAT ON ALL OF THE OTHERS.
ANYWAY, TENTATIVELY IT WILL GO IN BEHIND 3.31. OKAY.
AND THEN I’VE ALREADY TENTATIVELY INDICATED I’M NOT GOING TO GIVE 3.31.5, BUT THAT WILL BE REVISITED.
ALL RIGHT. NEXT ON THE DEFENSE-PROFFERED LIST, MR. DUSEK, IS 4.50. PEOPLE DESIRE TO MAKE A RECORD ON THAT OR SUBMIT?
MR. DUSEK: I THINK WE’RE SUBMITTING ON THAT ONE.
THE COURT: ALL RIGHT.
DO YOU HAVE IT IN YOUR PACKAGE?
MR. DUSEK: I THINK I INTENDED TO.
THE COURT: ALL RIGHT.
WHAT I’LL DO IS I’LL PUT IT DOWN.
MR. DUSEK: IN FACT I DO.
THE COURT: OKAY. ALL RIGHT. THANK YOU.
4.50 WILL BE GIVEN.
ALL RIGHT. THEN WE MOVE INTO THE AREA OF THE SUBSTANTIVE CHARGE. AND RECOGNIZING THAT I HAVE AGREED TO BASICALLY HEAR DEFENSE FURTHER ARGUMENT ON FIRST-DEGREE, PREMEDITATED MURDER, WE WILL GO THROUGH THESE RELATIVELY RAPIDLY, KNOWING THAT I AM GOING TO HAVE TO REVISIT THEM.
8.10, MURDER DEFINED, APPEARS THE COURT WILL GIVE THAT IN ITS ENTIRETY.
MR. DUSEK: YOUR HONOR, IF IT’S A FELONY MURDER WE DO NOT HAVE TO PROVE THAT IT WAS UNLAWFUL, —
THE COURT: THAT’S TRUE.
MR. DUSEK: — UNJUSTIFIED OR INEXCUSABLE.
THE COURT: YOU’RE RIGHT. SO THAT I HAVE TO REVISIT THAT BRACKETED PORTION.
MR. DUSEK: AND THE NUMBER TWO ELEMENT DOWN BELOW.
THE COURT: CORRECT.
MR. FELDMAN: YOUR HONOR, THERE’S A FEDERAL ISSUE ON THIS ONE, TYSON VERSUS ARIZONA, WHICH I THINK WE’LL SUBMIT TO THE COURT A BRIEFING ON. BUT WE HAVE A CONCERN WITH REGARD TO THE MANNER IN WHICH THE ANALYSIS OF THE PROSECUTION IS PROCEEDING BASED ON THE ARGUMENT THEY DON’T HAVE TO PROVE INTENT TO KILL. ALL THEY HAVE TO — IN THEORY MR. WESTERFIELD COULD GET THE DEATH PENALTY IF THERE WAS AN ACCIDENTAL KILLING. IN TYSON VERSUS ARIZONA WOULD CONTRADICT THAT PROPOSITION, BUT WE WANT TO SUBMIT PLEADINGS TO THE COURT ON THAT.
THE COURT: YOU’RE WELCOME TO DO THAT. YOU DO ANYTHING YOU WANT ‘CAUSE YOU’RE GOING TO HAVE A COUPLE DAYS UNTIL THE EVIDENCE SOLIDIFIES, BECAUSE AS SOON AS THE LAST WITNESS IS CALLED, DEPENDING ON THE TIME OF DAY, WE WILL EITHER IMMEDIATELY GO INTO THE DISCUSSION OF JURY INSTRUCTIONS OR WE’LL SET TIMING FOR IT. BUT OBVIOUSLY THIS IS ONLY THE INITIAL DISCUSSION. SO WE’LL REVISIT THIS.
AND WHAT I’LL DO IS I’LL INDICATE AT THIS POINT IN TIME THAT THE DEFENSE IS NOT SUBMITTING OR AGREEING TO ANY OF THESE INSTRUCTIONS WITHOUT FURTHER ARGUMENT.
MR. FELDMAN: THANK YOU.
THE COURT: 8.21 APPEARS TO BE APPROPRIATE BUT WILL NEED TO BE REVISITED.
8.21 APPEARS APPROPRIATE AND WILL NEED TO BE REVISITED.
NOW, I NOTE THE PEOPLE HAVE PLACED 8.70 IN THE PACKAGE.
MR. DUSEK: WE DID.
THE COURT: ALL RIGHT. SO WE WILL HAVE TO REVISIT THAT TO DETERMINE — BUT, SEE, THE PROBLEM WITH THIS IS EVEN UNDER THE DEFENSE’ THEORY THE FIRST IS ONLY FIRST — IT’S FIRST DEGREE. BUT, AT ANY RATE, I’LL REVISIT —
MR. FELDMAN: ACTUALLY, JUDGE, WE HAVE AN INTOXICATION ISSUE THAT ADDRESSES THAT. WE HAVE HEARD TESTIMONY WITH REGARD TO INTOXICATION.
THE COURT: WELL, I’LL LOOK AT IT.
ALL RIGHT. 9.50 IS THE SUBSTANTIVE CHARGE OF KIDNAPPING, WHICH IS COUNT TWO. IT WOULD APPEAR THAT ALL THE BRACKETED PORTIONS ARE APPROPRIATE.
MR. DUSEK: I THINK THERE’S A PORTION IN THERE THAT TALKS ABOUT COMPELS ANY OTHER PERSON WITHOUT —
THE COURT: THAT PORTION OBVIOUSLY NEEDS TO COME OUT. SO THAT BRACKETED PORTION IN THE SECOND PARAGRAPH AS TO ANY OTHER PERSON WILL COME OUT.
MR. FELDMAN: TO THE END OF THE BRACKET?
THE COURT: TO THE END OF THE BRACKET.
IT WOULD APPEAR THAT THE WORD OR SHOULD BE LOCATED BETWEEN TWO ELEMENT NUMBER ONES ON PAGE 2. ANY COMMENTS FROM ANY COUNSEL?
MR. DUSEK: NO. THAT’S FINE.
MR. FELDMAN: WELL, YEAH. MAYBE THE DRAFTERS OF THE CALJIC INTENDED ONE OR THE OTHER, NOT IN THE DISJUNCTIVE.
THE COURT: ALL RIGHT. IT APPEARS THAT THE TRIER OF FACT, THE JURY, CAN DETERMINE WHETHER EITHER OR NONE OR BOTH OF THOSE ARE APPLICABLE. SO I’M GOING TO INSERT THE WORD OR AND NOTE IT AS AN OBJECTION BY THE DEFENSE.
9.52 IS THE NEXT ONE UP. AND I DON’T HAVE THE INFORMATION IN FRONT OF ME. IS THERE AN AGE ALLEGATION IN THE INFORMATION?
MR. DUSEK: YES. UNDER FOURTEEN.
THE COURT: ALL RIGHT. SO I’LL TAKE OUT THE WORD INDICTMENT IN 9.52.
MR. DUSEK: YOUR HONOR, IF WE COULD GO BACK TO 9.50, —
THE COURT: OKAY.
MR. DUSEK: — MR. CLARKE’S READING OF THE USE NOTES WOULD SEEM TO INDICATE THAT THE SECOND NUMBER ONE IS INAPPROPRIATE.
MR. FELDMAN: THANK YOU.
MR. DUSEK: THAT WOULD BE WHEN YOU CAUSE ANOTHER PERSON TO COMMIT THE CRIME.
THE COURT: OH, I SEE. ALL RIGHT. SO IT’S SIMILAR TO WHAT WE DID IN PARAGRAPH TWO. SO YOU GET YOUR WISH, MR. FELDMAN.
MR. DUSEK: GLAD WE COULD BE OF SERVICE.
THE COURT: ITEM NUMBER ONE LISTED AS SECOND WILL BE DELETED.
ALL RIGHT. 9.52 WILL BE GIVEN.
ALL RIGHT. NOW I HAVE COMPETING 8.80.1’S.
ALL RIGHT. I WILL HEAR ARGUMENT AS TO THE DUELING 8.80.1’S. FIRST OF ALL, THE PEOPLE.
MR. CLARKE: YOUR HONOR, I’VE JUST BEEN READING THE CASE CITED BY THE DEFENSE. I WONDER IF IT MIGHT BE POSSIBLE, I DON’T WANT TO DEFER IT, BUT I WOULD LIKE TO READ THAT CASE A LITTLE MORE INTENSIVELY.
THE COURT: I’M LETTING BOTH SIDES KNOW ALL WE CAN DO AT THE INITIAL DISCUSSION IS HIGHLIGHT THE ISSUES THAT WE ARE GOING TO HAVE TO RESOLVE BEFORE THE ACTUAL INSTRUCTIONS ARE GIVEN.
MR. CLARKE: THANK YOU.
THE COURT: MR. FELDMAN, I’M GOING TO SEPARATE YOUR PLEADINGS SO THAT I CAN KEEP THE INSTRUCTION IN SEQUENCE. SO I’M LETTING THE RECORD KNOW THAT THE PLEADING FILED BY THE DEFENSE ENTITLED "DEFENDANT’S PROPOSED JURY INSTRUCTIONS AND SPECIAL INSTRUCTIONS," THE COURT IS TAKING OUT OF THAT PROPOSED SPECIAL INSTRUCTION NUMBER ONE AND PUTTING IT WITH 8.80.1 PROFFERED BY THE PEOPLE.
MR. FELDMAN: THANK YOU.
MR. DUSEK: WE ARE INSERTING OR AT LEAST ATTACHING THE KNOWLEDGE OR KNOWINGLY INSTRUCTION AND POSSESSION INSTRUCTION HERE AFTER THE PORNOGRAPHY INSTRUCTION.
THE COURT: RIGHT. YES.
ALL RIGHT. THEN WE HAVE 8.81.17.
MR. DUSEK: DID I PERHAPS MISS 8.80.1, THE INTRODUCTORY TO THE SPECIAL CIRCUMSTANCES?
THE COURT: NO. NO. WE JUST HAD A DISCUSSION ON THAT. MR. CLARKE HAS REQUESTED DEFERRAL OF THAT SO HE CAN RESEARCH A CASE THAT WAS CITED I THOUGHT.
MR. CLARKE: NO, ACTUALLY I —
MR. DUSEK: WE FAILED TO COMMUNICATE.
THE COURT: OKAY.
MR. DUSEK: I THINK WHAT WE WERE SEEKING TIME FOR WAS ON THE DEFINITION OF THE CHILD PORNOGRAPHY DEFINITION. 3. — I’M SORRY. 311.11. THE DEFINITION OF THAT.
THE COURT: ALL RIGHT. WE HAVEN’T EVEN GOTTEN TO THAT YET, HAVE WE? I THINK WE HAVEN’T EVEN GOTTEN THERE.
MR. DUSEK: ALL RIGHT. I’M SORRY.
THE COURT: OKAY.
MR. FELDMAN: CAN WE HELP YOU, JEFF?
THE COURT: BUT I’LL STILL CONTINUE TO DEFER ARGUMENT ON 8.80.1 UNTIL THE CASE IS CONCLUDED AND BOTH OF YOU HAVE TIME TO RESEARCH IT.
ALL RIGHT. THEN THERE’S 8.81.17 WHICH BOTH OF YOU HAVE IN YOUR PACKAGE.
MR. FELDMAN: YOUR HONOR, YOU STRIKE THE WORD ATTEMPTED AT THE SECOND PARAGRAPH.
THE COURT: YES.
MR. FELDMAN: THANK YOU. SO WHERE WE —
THE COURT: AND ALSO IN THE ELEMENT NUMBER TWO. IT WOULD APPEAR THAT THE COURT SHOULD USE THE WORD OR UNLESS THERE IS SOME COMPELLING REASON NOT TO.
MR. FELDMAN: IT EITHER HAPPENED OR IT DIDN’T. SO THERE’S NO ATTEMPT INVOLVED.
THE COURT: I’M NOT TALKING ABOUT THE WORD ATTEMPTED.
MR. DUSEK: I THINK 1(A) AND 1(B) OUGHT TO BE GIVEN WITH THE OR IN BETWEEN.
THE COURT: THAT’S WHAT I’M SUGGESTING AS WELL. AND ATTEMPTED IS OUT OF BOTH.
MR. FELDMAN: YES.
MR. DUSEK: YES.
THE COURT: OKAY.
OKAY. THEN, LET’S SEE, GOING CHRONOLOGICALLY, I’VE GOT A SPECIAL —
MR. FELDMAN: YOUR HONOR, COULD WE DEFER DISCUSSION OF THEIR SPECIAL INSTRUCTION ONE, PLEASE?
THE COURT: ALL RIGHT. SO THEIR SPECIAL INSTRUCTION NUMBER ONE WILL REMAIN BEHIND 8.81.17.
BOTH OF YOU HAVE SUBMITTED 8.83 WHICH APPEARS APPROPRIATE.
AND BOTH OF YOU HAVE REQUESTED 8.83.1. AND WHETHER I USE MENTAL STATE OR NOT AT THIS POINT IN TIME I THINK HAS TO WAIT DEFERRAL.
8.83.2 WILL BE GIVEN WITHOUT THE S BECAUSE THERE’S ONLY ONE SPECIAL CIRCUMSTANCE.
NOW WE’RE AT THE SUBSTANTIVE INSTRUCTION FOR COUNT THREE WHICH IS THE POSSESSION OF PORNOGRAPHIC MATERIALS.
MR. FELDMAN: YOUR HONOR, FOR THE RECORD, THAT’S OUR PROPOSED FOUR AND FIVE.
THE COURT: ALL RIGHT.
MR. FELDMAN: AND SIX.
MR. CLARKE: THAT WAS WHAT I WAS REQUESTING SOME ADDITIONAL TIME ON.
THE COURT: ALL RIGHT. FOUR, FIVE, AND SIX WILL BE REMOVED FROM THE DEFENSE PLEADING. THEY’LL BE PLACED WITH THE PROFFERED INSTRUCTION FROM THE PEOPLE TO BE DISCUSSED WHEN ALL THE EVIDENCE IS IN. HOWEVER, RIGHT AFTER WHATEVER INSTRUCTION OR INSTRUCTIONS THE COURT GIVES, WE’RE GOING TO INSERT THE WORD KNOWINGLY INSTRUCTION WHICH IS 1.21. AND THE POSSESSION DEFINED INSTRUCTION WHICH IS 1.24.
ALL RIGHT. NOW, THOSE ARE THE SUBSTANTIVE INSTRUCTIONS. THOSE WILL BE THE INSTRUCTIONS I GIVE BEFORE YOU ARGUE.
AFTER ARGUMENT IS WHEN I GIVE THE CONCLUDING SERIES WHICH STARTS AT 17.30. AND WE CAN GO THROUGH THESE PRETTY QUICKLY BECAUSE GENERALLY THEY ARE PRETTY PERFUNCTORY.
17. —
MR. FELDMAN: I’M SORRY. I APOLOGIZE. YOU GIVE SEVENTEEN-O-ONE AND SEVENTEEN-O-TWO AFTER — I’M SORRY — BEFORE ARGUMENT. UNANIMITY AND SEPARATE CONSIDERATION OF EACH COUNT.
THE COURT: ACTUALLY 17.02 IS A GOOD INSTRUCTION TO GIVE BEFORE YOU ARGUE BECAUSE THERE ARE MULTIPLE COUNTS, AND I HAVE TO GIVE THAT SUA SPONTE.
17.01, THOUGH, DOES NOT APPEAR TO BE APPROPRIATE.
MS. JONES: YOUR HONOR, AS TO COUNT THREE, THERE’S A NUMBER OF DIFFERENT POTENTIAL IMAGES, AND WE WOULD BE SEEKING UNANIMITY ON THE DECISION REGARDING WHICH IMAGE, IF THERE’S ONE OR MORE THAN ONE THAT THEY WOULD BE DECIDING ON.
THE COURT: WELL, I’LL HEAR FROM YOU. BUT DO YOU HAVE A FEELING ON THE MATTER?
MR. DUSEK: YOUR HONOR, I DON’T THINK THERE ARE SEPARATE ACTS THAT REQUIRE UNANIMITY HERE.
MR. FELDMAN: NO. SEPARATE PHOTOS.
THE COURT: THEY ARE SEPARATE PHOTOS, BUT THE INSTRUCTION DEALS WITH SEPARATE ACTS. I WILL HEAR FROM YOUR ARGUMENT IF YOU WANT A SPECIALTY INSTRUCTION AS TO THEY HAVE TO AGREE WHICH IMAGES ARE PORNOGRAPHIC. BUT THAT TALKS ABOUT ACTS.
DO THE PEOPLE HAPPEN TO HAVE 17.02 IN THE PACKAGE?
MR. DUSEK: THAT ONE WE DO NOT.
THE COURT: ALL RIGHT. IF YOU WILL MAKE A NOTE TO GET THAT BECAUSE THAT’S A SUA SPONTE REQUIREMENT BECAUSE THERE ARE MULTIPLE COUNTS.
MR. DUSEK: COULD WE TAKE A BREAK?
THE COURT: OH.
MR. CLARKE: POSSIBLY, YOUR HONOR?
THE COURT: ALL RIGHT. CERTAINLY. WE WILL TAKE TEN MINUTES.
WE WILL BE IN RECESS.
(RECESS, 9:38 O’CLOCK, A.M., TO 9:50 O’CLOCK, A.M.)